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Following its first two years of substantial deregulatory efforts, the Trump administration’s U.S. Department of Labor ends 2019 continuing to reverse many of the Obama administration’s anti-growth policies and allowing businesses to thrive in a slower-growing, yet still favorable, economy.

This past year saw the DOL issuing various rules that not only directly impact the construction industry, but also have the potential to promote free enterprise, reduce regulatory burdens and costs, as well as positively impact employers and workers within the industry.

The Occupational Safety and Health Administration’s final rule on electronic injury reporting, officially titled “Tracking of Workplace Injuries and Illnesses.” Issued on Jan. 25, the final rule partially rescinds the burdensome 2016 Obama-era final rule by eliminating the requirement that establishments with 250 or more employees electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to the agency every year—although these businesses must still maintain copies of these forms as needed through inspections and enforcement actions. The final rule also contains language superseding the Obama rule’s language on drug testing and safety incentive programs. Related to this rule, it is expected that the DOL will issue a proposed rule titled “Drug Testing Program and Safety Incentives” for 2020.  

On April 9, the DOL’s Wage and Hour Division published its proposal, officially titled “Joint Employer Status Under the Fair Labor Standards Act,” for determining joint employment under the FLSA. The DOL is proposing a four-part test that emphasizes actual (as opposed to mere potential) exercise of control over key aspects of employment. ABC filed comments in support of the DOL proposal, having applauded the proposed changes, which could bring additional clarity to a confusing area of the law, help alleviate unnecessary burdens on contractor and subcontractor relationships throughout the construction industry, reduce needless litigation and encourage innovation in the economy.

Following the recommendations from the Task Force on Apprenticeship Expansion’s final report to President Trump, the DOL issued its proposed rule on industry-recognized apprenticeship programs, or IRAPs, on June 25. According to the proposed rule, officially titled “Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations,” the DOL would establish a process for creating high-quality, industry-recognized apprenticeship programs by organizations that apply to become DOL-recognized Standards Recognition Entities (SREs). However, in its proposal, the DOL has stated that it would not initially accept SREs seeking to create these types of apprenticeship programs in the construction industry and/or the U.S. military. In its comment letter, ABC has addressed the initial exclusion of the industry and recommended an “all-of-the-above” approach to workforce development and addressing the industry’s massive skills gap.

DOL published its final rule on association retirement plans (ARPs), which allows small and mid-sized businesses to band together and offer 401(k) plans to their employees through ARPs. According to the final rule, officially titled “Definition of Employer Under Section 3(5) of ERISA-Association Retirement Plans and Other Multiple-Employer Plans” and published in the Federal Register on July 31, ARPs will enable these businesses to offer benefit packages comparable to those offered by large employers by reducing administrative costs. 

OSHA issued a request for information on Aug. 15 seeking information on Table 1 of the agency’s Respirable Crystalline Silica Standard for Construction. As part of its RFI, officially titled “Occupational Exposure to Respirable Crystalline Silica-Specified Exposure Control Methods,” OSHA requested feedback on its current and any additional engineering and work practice control methods to effectively limit exposure to silica for the equipment and tasks currently listed on Table 1, in addition to other construction equipment and tasks that generate silica that it should consider adding. According to an OSHA news release, the agency aims to use this rulemaking process to provide employers with more flexibility and reduce regulatory burdens while maintaining protections for workers.

On Sept. 27, the Wage and Hour Division published the final overtime rule, officially titled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” updating the federal exemptions to overtime pay for white-collar workers under the Fair Labor Standards Act. Following the Obama administration’s 2016 overtime rule that effectively doubled the minimum annual salary level from $23,660 to $47,476, which resulted in a legal challenge that permanently blocked the rule from going into effect, the Trump administration’s final rule raises the minimum salary level to $35,568; the rule also increases the total annual compensation required for employees to qualify under the shorter highly compensated test from $100,000 to $107,432. This final rule will go into effect on Jan. 1, 2020.

As the DOL pushed through various crucial rulemakings in the time following Secretary Alexander Acosta’s resignation, President Trump and the Republican-controlled U.S. Senate worked quickly to formally nominate and confirm Eugene Scalia to serve as secretary of labor, a process that lasted from Sept. 11 to Sept. 26.

Looking ahead to 2020, Secretary Scalia will play a pivotal role in deciding the fate of regulations surrounding IRAPs, joint employment and various safety and health issues, such as exposure to beryllium and respirable crystalline silica. 

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